DISTRIBUTIONS (3 of 4) For plans that have not started to pay distributions, do you have distribution forms and the required disclosures ready to distribute to participants? Does the paperwork satisfy all the legal requirements? Is the paperwork in a format that the participants will be able to understand? Have you anticipated the questions that you will get from the participants, and have you determined your communication strategy to answer them (e.g., providing an explanation during the exit interview, providing additional paperwork to assist the participants, providing a telephone number for the participants to call with questions)?
Are you paying distributions using the most current fair market value? If you are paying distributions to participants based on their December 31, 2005 account balances (assuming a December 31 plan year end and an annual stock appraisal), then a participant should not be paid after December 30, 2006 based on the December 31, 2005 balance. While this is the minimum requirement, you will also need to address whether the value is “stale.”
Is the fair market value that you are using an accurate reflection of the market value or has the value become “stale”? If you pay someone a distribution on December 15, 2006, based on the December 31, 2005 stock value, the value is almost 350 days old. Some experts would argue that you are not paying the participant at fair market value. Does a stock value become “stale”? If so, when? There is no clear guidance in this area, and the determination of if and when a value becomes “stale” is subjective and is based on the facts and circumstances of your situation.
Are any participants due to receive required minimum distributions (RMDs)? The IRS requires that participants must begin taking RMDs once they reach age 70½. The actual date that they must begin receiving RMDs is generally no later than the April 1 after the later of reaching age 70½ and the date of termination (unless you are a 5% owner, in which case you must begin receiving RMDs regardless of your termination date). They must continue to receive RMDs each December 31 until they no longer have an account balance. The value of the RMD is calculated based on actuarial tables provided by the IRS, the age of the each beneficiary (if any), and the beneficiary's relationship to the participant. You should carefully analyze the RMD status of all employees age 69 and older so you are not caught off guard. If the participant does not take the RMD each year, the participant will owe a 50% penalty on the amount her or she should have withdrawn and the plan risks becoming disqualified.
The stock will be repurchased (recycled) in the plan to other participants - cash will need to be contributed to the plan. The stock will be sold and the proceeds used to pay the participants – a stock appraisal on the date of the sale will need to be obtained. The stock will be distributed and put back to the company (or the ESOP). It is important to note that as it gets closer to December 31, it becomes more likely that the stock value may be “stale” (see above discussion) and not an accurate reflection of the actual stock value.
This situation can be avoided if you have identified RMDs ahead of time and have a well-planned distribution policy.
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